On behalf of the defendant-appellant,
the cause was submitted on the brief of Kathleen A. Lindgren of Lindgren Law Offices, LLC, West
Allis.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent,
the cause was submitted on the brief of Maura FJ Whelan, assistant attorney general, and J.B.
Van Hollen, attorney general.

2013 WI App 23

COURT OF APPEALS

DECISION

DATED AND FILED

January 23, 2013

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP297-CR

Cir. Ct. No.2010CF392

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Jacob C. Turner,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Walworth County:James
l. carlson, Judge.Affirmed.

Before Brown, C.J., Reilly and Gundrum, JJ.

¶1REILLY, J.John P.
Smith (father) and his adult son John P. Smith (son) lived in the same
residence in Walworth county.[1]The county sent a summons to “John P. Smith”
for jury duty.As John P. Smith, the
father, had recently served jury duty, the two assumed that the summons was for
the son.The son reported to court and
served on a jury that convicted Jacob C. Turner.The summons, unbeknownst to the Smiths, was
for John P. Smith, the father.

¶2Turner argues on appeal that he is entitled to a new trial as
his constitutional rights to an impartial jury and due process were violated by
the seating of a juror who had not been summoned for service and who did not
disclose that fact to the court.Turner also
argues he is entitled to a new trial as a posttrial hearing on the juror issue
was held without his presence, thereby violating his constitutional and
statutory right to be present at every critical stage of his proceedings.We reject Turner’s arguments and affirm the
decision of the circuit court.

BACKGROUND

¶3Turner was convicted by a twelve-person jury of attempted
strangulation and suffocation, disorderly conduct, and battery.The day after the verdict, the circuit court
learned that the son of a summoned juror had served instead of his father.The father and son had the same first and
last names, and the same middle initial, phone number, and address.[2]The summons mailed to the residence where the
father and son lived included both of their first and last names, middle
initial, and home address, as well as a jury number.The summons did not include any other
identifying information.Although the
father had filled out a juror qualification form months previously, he told the
court he thought the summons was for his son as he had been summoned for jury duty
a few years before.The two tried calling
a phone number on the summons but received an automated recording.

¶4The son reported for jury duty, checked in with a bailiff,
took part in voir dire, and was seated on the jury for Turner’s trial.The jury found Turner guilty.Upon learning of the error, the court held a
hearing, without notifying either the State or Turner, where it took testimony
from the father and son.Based on that
testimony, the circuit court stated that it thought the error was “an honest
mistake.”The court notified both the State and
Turner of the issue after the hearing and said it would take no further action
unless either party requested a hearing.Turner subsequently filed a motion asking the court to set aside the
verdict and grant him a new trial due to the seating of an “improper” juror and
the court’s exclusion of the defendant at the posttrial hearing.The court, applying the harmless error test,
found that a nonprejudicial, “innocent” error had been made and denied the
motion.Turner appeals.

¶6“A
criminal defendant is guaranteed the right to a trial by an impartial jury by
Article I, Section 7 of the Wisconsin Constitution and the Sixth Amendment of
the United States Constitution, as well as principles of due process.”State v. Louis, 156 Wis. 2d 470,
478, 457 N.W.2d 484 (1990).The
legislature has enacted statutory procedures involving the prequalification and
summoning of jurors to assist courts in the seating of impartial juries that
represent a broad cross-section of our communities.SeeWis. Stat. ch. 756 (2009-10).[3]

¶7To serve on a jury, one must be unbiased, qualified for
service per Wis. Stat.
§ 756.02, and survive the voir dire process.The son met all of these requirements.Turner does not allege that the son does not
meet these requirements.Instead, Turner
argues that the son should not have served on his jury as he was not the true
“John P. Smith” to whom the summons was directed and he did not voluntarily
disclose his doubts about whether he was the “John P. Smith” who was summoned.The fact is that “John P. Smith” who lived at
the address listed in the summons appeared for jury duty and never
misrepresented who he was.The fact that
the clerk’s office meant to summon a different “John P. Smith” at the same
address does not make the son an improper juror.

¶8To uphold Turner’s conviction, we must find that the circuit
court made an error in determining beyond a reasonable doubt that, absent the
son innocently and unknowingly serving in the place of his father in the jury
selection process, a rational jury would have convicted Turner. SeeCarlson,
261 Wis. 2d 97, ¶46.Turner argues that
the confidential nature of jury deliberations prevents a court from reaching a
level of certainty “beyond a reasonable doubt” as to what the son’s impact was
on the jury verdict.Turner’s proffer
suffers a fatal flaw:He did not have
the father or son testify at the postconviction hearing to show how or why he
would have struck the son from the panel had he known the father was the true
“summoned” juror.Turner chose not to
explore this issue as he had presumably read the transcript from the court’s
hearing, which showed no bias or prejudice on the part of either.We uphold Turner’s conviction.

¶9Like the circuit court, we do not see what difference the
innocent error of the son serving instead of his father would have made on the
outcome of this case. Turner may not
rely on “merely speculative or hypothetical” theories of how he might have been
harmed by the error in seeking a new trial.See State v. Mills, 107 Wis. 2d 368, 372, 320 N.W.2d 38 (Ct. App.
1982).The circuit court did not err in
finding that the “innocent” error did not affect the outcome of Turner’s case.

¶10Turner next argues that the son, in not volunteering his doubts
about whether he had been summoned, demonstrated a “lack of candor.”A party seeking to overturn a verdict and
receive a new trial based on lack of candor by a juror at voir dire must show
that the juror was biased against that party.State v. Wyss, 124 Wis. 2d 681, 725, 370 N.W.2d 745 (1985), overruled on other grounds by State v. Poellinger, 153 Wis. 2d
493, 505, 451 N.W.2d 752 (1990).Turner’s
argument fails as he provides no references to the record that show how the son
was untruthful, “intentionally tried to conceal information,” or gave “incorrect
or incomplete answers” during voir dire.Wyss, 124 Wis. 2d at 732.Even if Turner had asked questions pertinent to the summons, Turner has
not shown how such questions—or the answers received—would have been material
to jury selection.See id. at 726.We are not persuaded that Turner’s tenuous
argument for “lack of candor” supports a new trial when Turner alleges no bias,
untruthfulness, or even innocent misstatement by the son.See id.

Court Hearing on Jury Selection

¶11The United States and Wisconsin Constitutions guarantee
criminal defendants the right to be present at trial.David J.K., 190 Wis. 2d at 736.Wisconsin
Stat. § 971.04(1) also requires a defendant’s presence at a number
of key proceedings in the trial process, including “[a]t any evidentiary
hearing.”Sec. 971.04(1)(d).

¶12Turner contends that he is entitled to a new trial as the
circuit court’s posttrial hearing with the father and son violated his
constitutional and statutory right to be present.Turner theorizes he might have uncovered
additional evidence if he had been able to question the father and son at the
court hearing, but he does not explain why he did not summon the father and son
to his later motion hearing.A
transcript of the court’s hearing was made available to the parties and was
relied upon by Turner at his motion hearing.Turner was given an opportunity at his motion hearing to present
evidence but he chose only argument.We
find that the error by the court in holding the evidentiary hearing without the
presence of the State and the defendant was harmless.

By the Court.—Judgment and order
affirmed.

[1] The
name “John P. Smith” is used for illustration.It is not the name of the individuals involved in this case.All other factual assertions are taken from
the record.

[2] The
father and son did not have the same middle name, i.e., their middle names
could have been “Patrick” (father) and “Paul” (son).Hence, the son would not be “John P. Smith,
Jr.,” but would still have the same middle initial as his father.

[3] All
references to the Wisconsin Statutes are to the 2009-10 version unless
otherwise noted.